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March 21, 2005

The Blakely mess in Ohio hits the papers

As I spotlighted here last week, the recent application of Blakely to Ohio's sentencing laws by Ohio's First Appellate District's in Montgomery (available here) and Bruce (available here) marked a significant turning point in the story of Blakely in Ohio. (General background on Blakely's application to Ohio's sentencing laws can be found here and here, with post-Booker developments here and here.) Today, through a pair of interesting articles, the Cincinnati Post highlights some of the fall-out:

This overview article provides background on the Montgomery and Bruce decisions and details some of the reactions they have prompted.

This companion article explains that because of concerns "with the uncertainty caused by two recent appeals court rulings, a Hamilton County judge may not send any criminals to prison until it's resolved."

Notably, in State v. Lowery, 2005-Ohio-1181 (1st Dist. Mar. 18, 2005) (available here) the First Appellate District applied Bruce again, but then found other ways to affirm a sentence. Here's the court's summary explanation of its work in Lowery:

We agree with Lowery that Blakely precluded the judicial fact-finding necessary under Ohio's sentencing scheme to impose the maximum sentence for the aggravated robbery because it was among the "worst forms" of the offense. See State v. Bruce, 1st Dist. No. C-040421, 2005-Ohio-373. But we conclude that the court's finding was harmless error because the trial court's imposition of the maximum sentence on an alternative ground, that he posed the "greatest likelihood of future crime," was expressly based on his history of prior convictions and thus did not violate Blakely and was supported by the record. Finally, because the case law surrounding Blakely does not, at least at this time, extend to the judicial findings necessary to impose consecutive sentences, and because the record supports the trial court's findings, we affirm the trial court's decision to run the sentences for the two offenses consecutively.